Property has been a part of our civilized society since the time when man became a cultivator from being a food gatherer. The whole idea of ownership and possession revolves around what we call our own property. We understand that under the law, property is referred as a bundle of rights conferred on the person holding those rights. Therefore, towards the end of the lifespan of people, the need arises to transfer the accumulated property earned over the years to the eligible heirs.
This transfer of property takes place under the law of succession/inheritance after the demise of the holder of such property through a document called Will. It states the desire of the person holding the property as to the method of distribution of such person’s property. The complications arise when the holder of property has not left a Will regarding the distribution of his property. Therefore, the devolution of property takes place in two ways:
- Intestate:Where no Will is made.
- Testamentary:By the terms and stipulations ofthe Will.
It is important to note that Will is the legal declaration of intention of the testator who holds the right to distribute the property. Therefore, where we have a testamentary succession, the devolution of rights is according to the testament in the Will. The person responsible of the Will has to have testamentary capacity i.e. be capable of executing the Will in question.
Section 63 of the Indian Succession Act, 1925 provides that a Will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by Will. Under the laws of inheritance in India, the following can be bequeathed through a Will:
- Anything purchased from the income earned.
- All asset inherited without any stake in it.
- The testator’s share in any other asset.
- Only one-third of the assets owned, in case the Muslim personal laws govern the testator.
There are certain requirements to make a valid Will,like the following:
- The testator has to be at least 18 years of age.
- The testator has to be of a sound mind free from any fraudulent persuasion, coercion or undue influence.
- The Will must have explicit directions about the disposal of the assets upon testator’s demise.
- The Will must be signed in the presence of two witnesses, who would, in turn, attest the Will for it to be legally enforceable.
It is interesting to note that it not mandatory to register a Will and there is no need for it to be written on a stamp paper. Further, no stamp duty is payable for its execution. Now, the question arises about the need to have a codicil and probate along with a letter of administration.
We should first know what these documents are. A probate means a copy of the will, certified under the seal of the court with the grant of administration of the estate of the testator to the person executing the will. It is the official evidence of an executor’s authority. A probate is mandatory when the will is executed by a Hindu, Christian or Parsi in the cities of Mumbai, Kolkata or Chennai,or pertains to immovable property situated in Mumbai, Kolkata or Chennai.This probate granted is the conclusive evidence of the validity of the will until it is revoked. The grant of the probate decides only the genuineness of the Will and the executor’s right to represent the estate. Once a probate is granted, no suit will lie for a declaration that the testator was of unsound mind.
In the event of a person dying intestate, or when the Will does not name any executor, an application can be filed in the court for grant of a letter of administration. In the absence of a will, if there is no survivor amongst the account holders and the holder had not nominated anyone earlier, then a Succession Certificate is the primary document through which the heirs can stake a claim to the assets of a deceased relative. A succession certificate, under the Indian Succession Act, is a document that gives authority to the person who obtains it, to represent the deceased for collecting debts and securities due to him or payable in his name. It establishes the authenticity of the heirs and gives them the authority to inherit debts, securities and other assets that the deceased may have left behind.